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U.S. v. Thomas
Citation United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)(full-text). Factual Background The Thomas' operated a computer bulletin board called the Amateur Action Computer Bulletin Board ("AABBS") from their home in Milpitas, California. It featured e-mail, chat lines, public messages, and files that members could access, transfer, and download to their own computers and printers. The Thomases scanned sexually explicit pictures from magazines into GIF files. Those calling the AABBS system without a password could view the introductory screens, which contained brief, sexually explicit descriptions of the GIF files. However, access to the files was limited to members who received a password after they paid a membership fee and submitted a signed application form, which requested the applicant's age, address, and telephone number and required a signature. In 1993, a U.S. Postal Inspector received a complaint about the AABBS from an individual in the Western District of Tennessee. He accessed the AABBS and signed up under an assumed name. Thomas called him at his undercover telephone number in Memphis, Tennessee, acknowledged receipt of his application, and authorized him to log-on with his personal password. Thereafter, the inspector called the AABBS from his computer/modem in Memphis and downloaded certain GIF files depicting images of bestiality, oral sex, incest, sado-masochistic abuse, and more. The defendants were indicted by a grand jury and tried by a jury. Both defendants were found guilty on all counts relating to the bulletin board. The jury also found that the Defendants' interest in their computer system should be forfeited to the United States. Appellate Court Proceedings Defendants' challenge to their convictions on two grounds: (1) the law does not apply to intangible objects like the GIF files, and (2) Congress did not intend to regulate the computer transmissions involved here, because the law does not expressly prohibit such conduct. The court rejected both grounds. First, the court held that the decision in United States v. Gilboe''684 F.2d 235 (2d Cir. 1982)(full-text), ''cert. denied, 459 U.S. 1201 (1983). persuasive. In Gilboe, the Second Circuit rejected the argument that the defendant's transmission of electronic impulses could not be prosecuted under a criminal statute prohibiting the transportation of money obtained by fraud, reasoning that: The court held that "the manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location." Second, the court was unpersuaded by the defendants' argument that "the absence of the words 'including by computer' in Section 1465, despite Congress' addition of those words in other legislation, is evidence of its intent not to criminalize conduct, such as Defendants' that falls within the plain language and intent of Section 1465." The court relied upon the case of United States v. Maxwell, 42 M.J. 568, 1995 WL 259269 (A.F. Ct. Crim. App. 1995). where the defendant was convicted of transmitting obscene visual images electronically through the use of an on-line computer service. In that case, the court held that: The court then turned to the question of proper venue for the prosecution. One of the major objections raised about this case by those involved in the Internet was the fact that it is impossible for a content provider on the Internet to know from where a user is calling. If a content provider wishes to insulate itself from liability, the argument goes, it will have to comply with the laws of the most restrictive jurisdiction in which its content may be downloaded and viewed. That, in turn, will have a chilling effect on the exercise of free speech rights. The Thomases had argued that their obscenity charges should have been determined according to the community standards of their home jurisdiction, where the police and district attorney's office had already reviewed the material on their AABBS and had declined to prosecute them for obscenity. As a back-up argument, the Thomases claimed that the "community standards" by which they should be judged should be the "cyberspace" community and not the community standards of Tennessee. The court rejected this argument as well, stating: The court took pains to make it clear, however, that this was not a case in which the Thomases had no knowledge of the fact that the postal inspector was downloading the images in Tennessee. Specifically, the court found that Thomas knew of, approved, and had conversed with an AABBS member in that state, who had their permission to access and copy GIF files that ultimately ended up there. However, the court did go out of its way to differentiate this case from the situation in which the content provider had no knowledge, nor the ability to determine the location of the viewer: The court relied upon the U.S. Supreme Court decision in Sable Communications of Cal., Inc. v. F.C.C.,''492 U.S. 115, 125-26 (1989)(full-text). where the Court rejected Sable's argument that it should not be compelled to tailor its dial-a-porn messages to the standards of the least tolerant community. Since the Thomases had actual knowledge of the user's location, the court refused to rule on the situation where the content provider had no knowledge of the location, and no reasonable ability to learn of the location. That issue will have to await another court and another case. References Category:Case Category:Case-U.S.-Federal Category:Case-U.S.-Criminal Category:Internet Category:Obscenity Category:First Amendment Category:Definition